Judge: Joel L. Lofton, Case: 23AHCV00838, Date: 2024-02-07 Tentative Ruling

Case Number: 23AHCV00838    Hearing Date: February 7, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      February 7, 2024                                             TRIAL DATE: No date set.

CASE:                         ZIX, INC., a California corporation, v. US LONGTON, INC., a California corporation; JI LI, an individual; ALL PERSONS UNKNOWN, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff’s title, or any cloud on Plaintiff’s title thereto; and DOES 1 through 50, inclusive.  

CASE NO.:                 23AHCV00838

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:                Defendants Ji Li and US Longton, Inc. (“Defendants”)

RESPONDING PARTY:       Plaintiff Zix, Inc. (“Plaintiff”)

SERVICE:                              Filed January 3, 2024

OPPOSITION:                       Filed January 8, 2024

REPLY:                                   No reply filed.

RELIEF REQUESTED

             Defendants move to set aside default and default judgment.

BACKGROUND

            This case arises out of Plaintiff Zix, Inc.’s (“Plaintiff”) claim for quiet title for four properties located at 314 E. Mission Road, #A-D, San Gabriel, CA 91776, APN: 5368-019-046, 5368-019-047, 5368-019-048 and 5368-019-049 (“Subject Properties”). Plaintiff filed this complaint on April 13, 2023, alleging four causes of action for (1) quiet title, (2) fraud, (3) partition, and (4) declaratory relief.

TENTATIVE RULING

            Defendants’ motions to set aside default and default judgment are GRANTED.

DISCUSSION

            Defendants move to set aside the entry of default and default judgment. On June 27, 2023, default was entered against both Defendants. On November 15, 2023, a default judgment prove-up hearing was held. On December 4, 2023, this court entered judgment in favor of Plaintiff. Defendants filed their motions to set aside default and judgment on January 3, 2024. Defendants’ motions were continued to comply with the statutory requirements for the hearing date.

            The issue is whether Defendants have raised sufficient grounds to set aside the default and default judgment.

            “A party may move to set aside a void judgment under section 473, subdivision (d). ‘A default judgment is void if the trial court lacked jurisdiction over the parties.’ [Citation.] A default judgment entered against a defendant who was not served in the manner prescribed by statute is void. [Citation.] ‘Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.’ ” (First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 42.)

            “Section 415.20, subdivisions (a) and (b) authorize substitute service in lieu of personal delivery. ‘If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, ... a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.’ (§ 415.20, subd. (b).)” (Kremerman v. White (2021) 71 Cal.App.5th 358, 371-72.)

            Plaintiff filed two proofs of service that stated that Defendants were served by substituted service at 2799 S. Native Avenue, Rowland Heights, California 91748 on May 5, 2023. The proofs of service state that the documents were left with a John Doe occupant in his 60s who refused to provide his name. The process server provides he previously attempted to serve Defendants at the location on May 2 and 3 of 2023. Initially, in support of his argument that service was improper, Plaintiff merely contended that he did not live at the Rowland Heights address because his ex-girlfriend’s mom lived there so he stayed at an alternative residence. (Ji Decl. ¶ 2.) In opposition, Plaintiff contends that Li did in fact reside at 2799 S. Native Avenue, evinced by the fact that Li owned the property located at 2799 S. Native Avenue and listed that address when attempting to refinance the loan for the Subject Properties. (Yang Decl. ¶¶ 8-9.)

            In his supplemental brief, Defendants provides two declarations. The first is from Changcai Liu, a caretaker who resides at the Native Avenue address. Liu provides that he does not recall speaking with anyone who appeared at the residence on May 5, 2023, the date when substituted service was ostensibly effectuated. (Liu Decl. ¶ 4.) He also says he never received any legal documents on May 5, 2023, nor did he receive any legal documents during 2023. (Id. ¶¶ 5-6.) Defendants also submit the declaration of Agustin Flores, gardener for the property, who provides that he was working at the residence at the time of purported service and did not receive any legal documents. (Id. ¶¶ 5-6.)

            Even with the supplemental declarations, Defendants have not established that service was defective so as to render the default and default judgment void.

            However, Code of Civil Procedure section 473.5 provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

            Defendants have demonstrated that the service of summons did not result in actual notice and this motion is made within the time set by statute. Defendants’ motions to aside default and default judgment are granted.

CONCLUSION

            Defendants’ motions to set aside default and default judgment are GRANTED.

Dated:   February 7, 2024                                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court